Case Study 2: Property
Case Study 2: Property
Liberty University
Business Law – BUSI561
Betzaida Aponte
Abstract
In this paper I will assume to be Martin’s attorney, as well as his sister in Christ. I will be
looking at the property issues he has brought to my attention from both a legal and a spiritual
perspective and give Martin my best assessment of his legal rights, along with the best advice as
to how he should handle the situations (Property Case Study)
Introduction
Martin has decided to retire after many years in service as a deputy in a small North
Carolina town and as a detective in Raleigh. Martin owns an interest property in the mountain
region of North Carolina as well as a second home in the coast of North Carolina (Property Case
Study). Martin has brought issues for three properties; here is my assessment for each:
Mountain Property
Per the property case study, Martin purchased the mountain property thirty one years ago
as a joint tenant with a right of survivorship with his friends Peter, John, and Thomas. All of the
friends have passed away, and Martin has not been back to the property in more than 20 years
(Property Case Study). Martin’s friend, Peter indicated in his will that he was leaving his interest
in the property to his son Andrew. The issue we find is that Andrew falsely claimed his interest in
the property as collateral for a personal loan which he has defaulted on and now the lender has
initiated a legal action to foreclose on the property (Property Case Study).
According to Kubasek, Brennan and Browne (2015), under a joint tenancy, all are co-
owners of equal shares and may sell their shares without the consent of other owners and their
interest can be attached by creditors (Kubasek et al, 2015). In a joint tenancy the interests are
divided equally among the remaining joint owners upon the death of a joint tenant (Kubasek et
al, 2015). In North Carolina the statute in joint tenancy, according to Orth (1990,1991), is that
an exception would be made to the general rule adopted two centuries ago, where the estate of
joint tenancy in North Carolina is still without the right of survivorship, unless "the instrument
creating the joint tenancy expressly provides for a right of survivorship'" (Orth, 1990-1991).
Looking closely at Martins co-ownership we find that he is a joint tenant with right of
survivorship which means if one of the tenants died, the interest of that tenant could not be
willed away to someone else (Harrison, 2012). It seems that Peter cannot pass his interest by will
to anyone other than the joint tenants (Harrison, 2012). So in this case Martin would have sole
ownership of the title. My legal advice would be that the lender’s case would be invalid as it is a
mistake to use the interest of a joint ownership without ensuring right of ownership, in this case
the lender cannot take legal action to foreclose on the property. From a Christian perspective I
would encourage Martin to find out more about Andrew’s situation. Andrew perhaps thought
that by having the property interest transferred to him in a will that he would have legal
ownership rights. Also, by taking a closer look at Andrew’s situation we can confirm whether
there was malice play on his part or just an innocent mistake. It could also be that Andrew may
be suffering financially to make his payments to the bank.
The bible instructs us to do well for others and share what we have, according to
Hebrews 13:16 “Do not neglect to do good and to share what you have, for such sacrifices are
pleasing to God.” Also, in sensitive situations like this we can easily focus on ourselves and just
see things from our own perspectives and forget about the perspectives of others involved.
Philippians 2:4 teaches us to look out for others interest, “Let each of you look not only to his
own interests, but also to the interests of others”. In order to discern how to help, Martin needs to
know more about Andrew’s situation.
Martin however has another issue with this property. He was surprised to see someone
had constructed in the center of the land since the last time he had visited (Property Case Study).
Martin was also shot at and asked to leave the property by Mr. Otis who told Martin that he
didn’t care about a deed, and said he has lived on the property openly and notoriously for some
20 years, and, as far as he was concerned, it was now his (Property Case Study). Typically
people without homes that settle in unoccupied land are called squatter. Due to the need of food
and shelter, squatting on unoccupied lands, buildings, forests, or even garbage dumps becomes
an attractive remedy that squatters frequently practice (Gardiner 1997-1998). Black's Law
Dictionary defines a squatter as: [o]ne who settles on another's land, without legal title or
authority (Squatter, 1990). In several nations, including the United States, Germany, and Great
Britain, a squatter may gain legal possession of land through adverse possession (Gardiner 1997-
1998).
Most states provide that when a person openly treats realty as his or her own without
protest or permission from the real owner, for a statutorily established period of time, ownership
is automatically vested in that person (Kubasek et al, 2015). The statute of time varies by state,
if the true owner does not make a claim, the individual can petition the court to have the title
transferred to his or her name and become the owner of the property (Harrison, 2012). In North
Carolina the statutory period for adverse possession is twenty years (LaMance, 2013). This
means that the adverse possessor must fulfill the requirements of having to be actual, open and
notorious occupants for twenty years before they have a valid claim for adverse possession
(Reuters, 2015). Although a person possessing land can be both a trespasser and a squatter, not
all possessors are charged with or faced civil liability for trespassing (McCarthy, 2014).
However, neither the squatter nor the trespasser has the legal authority or right to enter onto the
land (McCarthy, 2014). To avoid civil and criminal liability, a squatter is likely to offer the
police some form of documentation claiming a right to be on the property, so the police would
direct a homeowner to the court system to obtain a judicial determination in order to remove a
squatter trespassing (McCarthy, 2014). The homeowner would then have to file suit called
eviction proceeding and procure a favorable judgment in order to oust a squatter through the
court system trespassing (McCarthy, 2014).
A civil action for a summary proceeding is the "safe" route for the valid owner of
property to oust a squatter and taking this route allows the valid owner to avoid criminal
sanctions or civil liability trespassing (McCarthy, 2014). This eviction process is known to take
several months and in addition the property owner may have to spend the high costs of legal fees
however this process is most recommended by police and homeowners, but these proceedings do
not necessarily provide immediate response or removal trespassing (McCarthy, 2014). The legal
advice I would give Martin in this scenario is to try to regain possession via a civil action and
obtain a judgment to be enforced, however Martin needs to also understand this is something that
would take time and in addition comes with risk of losing the property via an adverse possession.
Coastal Property:
Martin has another property in Wilmington, NC and found a notice from the city
authorities saying his property was being taken by eminent domain in order to make way for a
new family resort that would bring new businesses and jobs to the community (Property Case
Study). The city attorney told Martin that there was really nothing he could do about the seizure
of the house. He assured that Martin would receive the full market value for his property in
compensation. Condemnation of property for private development in North Carolina is rare
(Steele, 2014). According to Lanza, Miceli, Sirmans and Diop (2013), the government’s taking of
private property for public goods like highways, airports, or hospitals is generally regarded as an
appropriate (though not always popular) use of its power of eminent domain and more
controversial is the taking of property as part of a large-scale economic redevelopment project
whose primary beneficiary is a private party (Lanza et al, 2013). Few dispute the legitimacy of
government’s power to take private property for the production of classic public goods like
highways or parks (Lanza et al, 2013). The Supreme Court’s 2005 ruling in Kelo v. City of New
London provides a useful context for reexamining this debate (Lanza et al, 2013). The U.S.
Supreme Court has demonstrated a consistent willingness to approve the use of eminent domain
for urban redevelopment projects, provided those projects are part of a well-conceived and
comprehensive plan (Lanza et al, 2013). Historically, state courts had been somewhat less willing
to adopt this view, but the Kelo decision may change that (Lanza et al, 2013). I would ask
Martin how badly he wants the coastal property before proceeding with taking legal actions. The
family resort is underway and the neighboring houses have already been torn down. My advice
to Martin would be to take the full market value compensation for the coastal property and invest
in a different property.
Personal Property:
Martin has just been a victim of auto theft. Martin’s car was stolen by a valet parking
attendant named Benjamin. The Wilmington police was notified. Martin’s car was found three
weeks later at the Classic Car Show in Mount Olive, NC. The man showing the car had
purchased it from a used car lot in Kinston, NC, which had taken the vehicle from a young
fellow matching Benjamin’s description, as a trade for a 1967 Mustang convertible. Neither the
man who was showing the car nor the used car dealer had any idea that the vehicle had been
stolen. Martin asked for the car back, but the man in possession said he was not giving it up until
somebody reimbursed him for the $5,600.00 that he had paid for the vehicle (Property Case
Study)
In this case the one who steals personal property does not acquire a title to the property
and thus, cannot convey a title to a buyer by selling the property, so Martin retains the right to
the goods, even though he does not have possession of the car and that right is good against all
others (Harrison, 2012). If someone steals property from the owner, then sells the property to a
third party, even to an innocent purchaser who has no notice that the property is stolen, the true
owner in this case which is Martin can still reclaim the property (Harrison, 2012). The duped
buyer’s cause of action is against the one who sold him the property and the buyer would have
no basis for keeping the property from Martin (Harrison, 2012). My advice to Martin is to alert
authorities and his insurance company and through his title of the car he should be able to get his
vehicle back.
References
Gardiner, B., 1997-1998, 8 Ind. Int'l & Comp. L. Rev. 119, Squatters' Rights and Adverse
Possession: A Search for Equitable Application of Property Laws. pages, 119 to 158,
Retrieved from http://heinonline.org.ezproxy.liberty.edu:2048/HOL/Page?
handle=hein.journals/iicl8&id=127
Harrison, B. A, (2012). The Legal, Ethical, and Regulatory Environment of Business in a
Diverse Society, (Tenancies Recognized by Law) Page 159 –169.
Kubasek, N. K., Brennan, B. A., Browne, M. N. (2015). The Legal Environment of
Business – A Critical Thinking Approach, Pages 355-367
LaMance, K., 2013, Adverse Possession Lawyers, Legal Match Law Library Managing,
Retrieved from http://www.legalmatch.com/law-library/article/adverse-possession-
lawyers.html
Lanza, S. P., Miceli, T. J., Sirmans, C. F., & Diop, M. (2013). The use of eminent domain
for economic development in the era of kelo. Economic Development Quarterly, 27(4),
352-362. Retrieved from http://search.proquest.com/docview/1504127713?
accountid=12085
McCarthy, S. D. (2014). Squatting: lifting the heavy burden to evict unwanted company.
UMass Law Review, 9(1), 156+. Retrieved from
http://go.galegroup.com.ezproxy.liberty.edu:2048/ps/i.do?id=GALE
%7CA381054623&v=2.1&u=vic_liberty&it=r&p=LT&sw=w&asid=a5c1c75f6c064f3ba
a261afc14728d62
Orth, J.V., 1990- 1991, 69 N.C. L. Rev. 491: Joint Tenancy Makes a Comeback in North
Carolina, Retrieved from http://heinonline.org.ezproxy.liberty.edu:2048/HOL/Page?
handle=hein.journals/nclr69&id=521
Reuters, T., 2015, Find Law: North Carolina Adverse Possession Laws , Retrieved from
http://statelaws.findlaw.com/north-carolina-law/north-carolina-adverse-possession-
laws.html
Steele, G. (2014, May 05). Property protector: Eminent domain bill in North Carolina
senate's hands. The Mecklenburg Times Retrieved from
http://search.proquest.com/docview/1522531676?accountid=12085
SQUATTER- The Law Dictionary See O'Donnell v. Mclntyre, 16 Abb. N. C. (N. Y.) 84;
Park- ersburg Industrial Co. v. Schultz, 43 W. Va. 470, 27 S. E. 255. Law Dictionary:
What is SQUATTER? definition of SQUATTER (Black's Law Dictionary) Retrieved
from http://thelawdictionary.org/squatter/
The Holy Bible, English Standard Version. Copyright ©2001 by Crossway Bibles, a
publishing ministry of Good News Publishers. Retrieved from
http://www.openbible.info/topics/conflict_resolution
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